Goodbye to eugenics in Poland: the protection for disabled unborn children enters into force

@ElentirENG ES 1·28·2021 · 6:43 1

Since last midnight, Poland has become an even safer place for unborn children, one of the few in Europe today.

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The judgment that declares eugenic abortion unconstitutional is published

As you could already read in Counting Stars, on October 22, 2020 the Constitutional Court (TK) of Poland decided to outlaw eugenic abortion, declaring it incompatible with two of the articles of the Polish Constitution:

Article 30. "The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities."

Article 38: "The Republic of Poland shall ensure the legal protection of the life of every human being."

However, the announcement of the TK did not automatically mean the entry into force of the ban on eugenic abortion. It was necessary for the Court to publish the judgment, which would indicate the arguments that justify that decision. Yesterday the Law Gazette of the Republic of Poland finally published the sentence (see PDF), so it becomes effective.

The Constitutional Court limits itself to legal arguments

The legal justification for the sentence can be read on the TK website (see section III - uzasadnienie prawne). In it, the TK avoids incurring in philosophical or religious questions and limits itself to arguments of strict legal coherence with the Constitution of the Republic of Poland and with the Court's own jurisprudence. The TK appeals to that jurisprudence when it states the following:

"The wording already contained in the first constitutional provision on personal freedoms and rights seems to determine the primacy of human life in the hierarchy of values protected by law. At the same time, it leads to the adoption of an interpretative directive in the legislative process, according to which all possible doubts about the protection of human life must be resolved in favor of this protection (in dubio pro vita humana)."

Human life has constitutional protection, also prenatal

The TK once again cites its own jurisprudence when it states: "The democratic rule of law places man and his goods as the most valuable supreme value. That good is life, which in a democratic state governed by law must remain under constitutional protection at all stages of its development."

The Court continues with the review of its jurisprudence, affirming: "the value of the constitutionally protected legal asset, which is human life, including life that develops in the prenatal stage, cannot be differentiated. There are no sufficiently precise and justified criteria to make such a differentiation based on the development phase of human life. From its inception, human life becomes a constitutionally protected value. This also applies to the prenatal phase."

The TK recalls that a human being "cannot be treated as an object"

Quoting a 1996 ruling, the TK points out: "the only reason for the prohibition of the interruption of pregnancy, which generally applies (…) also to the pregnant woman herself, must be the recognition of the value of the life of the conceived human being." Recalling the meaning of the Polish Constitution, the TK recalls that "each individual enjoys the same personal dignity, which means that he cannot be treated as an object. The normative expression of this idea is art. 30 of the Constitution. The obligation to respect and protect it on the part of the public powers, which is related to the inherent and inalienable dignity of the human being, means that the existence of an individual is an inherent constitutional value. Therefore, man is an end in himself, not a means to an end."

It debunks the discriminatory idea on which eugenics is based

Consequently, the TK defeats the seriously discriminatory idea on which the defenders of eugenic abortion are based: "It is unacceptable to say that one individual is worth less than another as a human being due to some characteristics. This statement applies not only to the postnatal phase, but also to the prenatal phase of human life. Regardless of the fact of birth, the quality of a certain being, which is human, does not change."

"The basis of this statement is the observation that the development of man and his personality is a gradual process that extends to the period before and after birth," the TK says. "This means that the innate and inalienable dignity, and consequently the legal protection of life, cannot be arbitrarily limited to a fully formed person, or from a specific point in the child's development in the prenatal stage. This protection applies to every living human being, and the period of life and degree of development of him do not matter in this sense."

"It is not possible for someone to be a child and not a human being"

The TK also recalls that Article 71.2 of the Polish Constitution speaks of the mother "before and after birth" of her child. Based on this, the Court affirms that "if you are a mother before and after giving birth to a child, you are a child not only after birth, but also in the period before them, that is, in the prenatal phase of life. It is not possible for someone to be a child and not a human being. There is no doubt that every child is a human being." The Court adds: "Therefore, it is legitimate to say that the Constitution introduces the highest standard of protection of human life, because in its light it is irrational to devitalize human dignity due to its stage of development, because to take life, whatever it may be. its stage, at the same time annihilates the subject to whom this dignity belongs."

The judgement states that "a child who has not yet been born, as a human being, a person who has the right to inherent and inalienable dignity, is a subject who has the right to life, and the legal system, in accordance with art. 38 of the Constitution - must guarantee the due protection of this central good."

Neither genetic quality nor discomfort justify killing the unborn child

The TK also warns of the circumstances that would justify a possible limitation of the right to life: "The condition for limiting the right to legal protection of life is the existence of a situation in which it is undoubtedly incompatible with the corresponding rights of other people. This premise can generally be described as the requirement of symmetry of goods: sacrificed and saved." The TK adds: "The mere fact of a disability of the fetus (an incurable disease) cannot independently decide on the admissibility of abortion from the constitutional perspective. Because neither the care for the quality of the transmitted genetic code (eugenic premises sensu stricto), nor the consideration of a possible discomfort in the life of a sick child, can justify the decision to take actions aimed at causing his death."

This argument of the Polish Constitutional Court debunks the fallacies that promoters of eugenic abortion have been using, such as turning disability into something that justifies killing those who suffer from it - treating people like mere cattle who are sacrifice if it has a broken leg - or place the welfare of the parents above the most important of human rights, which is the right to life.

Poland has chosen the culture of life

Predictably, proabortion groups will claim that this is a sentence inspired by religious prejudice. What they will have to explain is whether the "religious prejudice" that affirms "you shall not kill", which inspires one of the legal bases of every democratic state (the protection of human life), is below the infamous ideological prejudice that considers certain human beings as unworthy to live by reason of their disability, a perverse idea that inspired some of the atrocities of Nazi totalitarianism. Beyond legal arguments, society has to choose between two ethical models and the consequences derived from each one: the culture of life versus the culture of death. Poland has chosen the culture of life: one more reason to admire that great Nation.